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TMI Blog2019 (12) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal dismissed. - Customs Appeal No. 746 of 2012 - A/86998/2019 - Dated:- 29-8-2019 - Hon ble Dr. D.M. Misra, Member (Judicial) And Hon ble Mr. Sanjiv Srivastava, Member (Technical) None for the Appellant Shri R.K. Dwivedy, Additional Commissioner, Authorised Representative for the Respondent ORDER PER: SANJIV SRIVASTAVA This appeal is directed against the order in appeal No 51/ Mumbai III/2012 dated 23.05.012 of the Commissioner of Customs (Appeals), Mumbai Zone III. By the impugned order, Commissioner has set aside the order in original, of the Dy Commissioner Customs (EPCG) Air Cargo Complex Mumbai, Holdings as follows: 25. In view of the above, exercising discretion powers u/s 149 of the Customs Act, 1962, I authorize the subject 122 Bills of Entry Listed in Annexure A hereto, to be Amended- a) to read the classification of the subject goods as 85252017 as against 85252019 mentioned in these Bs/E; b) to extend benefits under notification no 21/2002-Cus Sr No 313 dated 01.03.2002 to the subject goods viz Fixed Wireless Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the above, it has therefore been decided to withdraw Board Circular No. 57/2003 dated 27-06-2003 and to restore status-quo ante prevailing prior to the issuance of the said circular. Consequently, the benefit of notification No. 21/2002 -Cus (S.No. 313) dated 01-03- 2002 is available to all telephones(including Fixed Wireless Telephones) working on cellular technology. 2.3 Thereafter appellants sought amendments in the Bill of Entries in terms of Section 149 of the Customs Act, 1962 claiming the benefit of exemption under Notification No 21/2002-Cus dated 01.03.2002 (Sr No 313) and for deletion of EPCG benefits from the Bills of Entry. These amendments were allowed by the Deputy Commissioner as per his order referred in para 1, supra. 2.4 Revenue filed the appeal against the order of Deputy Commissioner which was allowed as per the impugned order. 2.5 Aggrieved by the impugned order, appellants have filed this appeal. 3.1 Matter was listed for hearing on several occasions, 12.12.2018, 30.01.2019, 11.03.2019, 09.04.2019, 12.06.2019, 23.07.2019 29.08.2019. None appeared for the appellant. 3.2 We h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble Supreme Court in case of Priya Blue Industries Ltd 2004 (172) ELT 145 (SC). It is also a well known principle that what cannot be done directly, cannot be done indirectly. Since assessment can only be modified in appeal proceedings, the same cannot be indirectly modified under Section 149. Hon ble Tribunal in the matter of Grasim Indus Ltd 1998 (104) ELT 95 (Tribunal) has held that classification of goods is part of assessment order on Bill of Entry. Further, in the matter of L M Glass Fiber (India) Pvt Ltd 2009 (235) ELT 146 (Tri- Chennai) it was held that classification of goods is as much a part of assessment as valuation. Hence the classification cannot be treated as clerical mistake and allowed to be amended under section 149. 4.2 We do not find any merits in the submissions made by the Appellant in appeal in view of the Tribunal decision in case of PLG Power Ltd, referred by the Authorized representative. Hon ble Madras High Court has in case of Thiru Arooran Sugars Ltd [2010 (254) ELT 45 (MAD)] interpreting Section 149, held as follows: 7. Section 149 of the Customs Act reads as follows : 149. Amendment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing its order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position, in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot be countenanced. The view was taken by us also gains support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that whereas a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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